Britton v R

Court of Criminal Appeal (NSW)|2024-05-03|Before: Stern JA, Rothman J, Yehia J, Gleeson CJ

HEADNOTE [This headnote is not to be read as part of the judgment] On 31 October 2022, following a trial in the District Court of NSW, the applicant, Ms Linda Britton, was found guilty by a jury of two counts of manslaughter. The applicant was sentenced by Huggett SC DCJ ("the sentencing judge") to an aggregate term of imprisonment for 6 years, commencing on 19 January 2023, with a non-parole period of 3 years. The factual circumstances of the applicant's offending occurred during a physical altercation that took place in the car park of a Plaza Shopping Centre in Nambucca Heads between certain members of the applicant's family and the Widders group. During the unfolding violence, the applicant saw her daughter, Skye Luland, lying face up motionless on the ground with Kazzandra Widders leaning over her and repeatedly punching her. In an attempt to protect her daughter, the applicant decided to drive her motor vehicle towards Kazzandra intending to nudge her off Skye. However, the applicant caused the deaths of both her own daughter and Kazzandra by tragically crushing them with her motor vehicle. The applicant sought leave to appeal against her sentence on two grounds: Ground 1: The sentencing judge erred in failing to take into account relevant considerations when assessing the objective seriousness of the offences. Ground 2: The aggregate sentence was manifestly excessive. The Court held (Rothman J, Stern JA and Yehia J agreeing) granting leave to appeal, allowing the appeal and resentencing the applicant: As to Ground 1: (1) There is a clear distinction between objective seriousness of an offence and the moral culpability of an offender. Nevertheless, some of the circumstances that should be considered in determining moral culpability may be relevant to the determination of objective seriousness, such as provocation, motive, mental illness, and perceived self defence: at [113]- [114] (Rothman J), [2] (Stern JA), [168]-[170] (Yehia J). BM v R [2019] NSWCCA 223, DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, Russell v R (2023) 112 NSWLR 533; [2023] NSWCCA 272, referred to. (2) The sentencing judge failed to take into account a material consideration and there is an identifiable error in the sentencing exercise: at [126] (Rothman J), [3], [6] (Stern JA), [169], [171] (Yehia J). As to Ground 2: (3) Having found that error was established in relation to ground 1, it was unnecessary to consider ground 2: at [127] (Rothman J). (4) As to the principles applicable when considering manifest error: at [95] (Rothman J). Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 22, referred to.

JUDGMENT

STERN JA: I agree with the orders proposed by Rothman J for the reasons his Honour gives. Without in any way derogating from my agreement with his Honour's reasons, I will add some short additional observations.
It is well established that, in making an assessment of the objective seriousness of offending, "all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way": Tepania v R [2018] NSWCCA 247 at [112] (Johnson J, Payne JA and Simpson AJA agreeing). Those matters may bear upon the nature of the offending notwithstanding that they may also be characterised as relevant to moral culpability. As the Court found in BM v R [2019] NSWCCA 223 at [17], there may be an error in failing to take into account matters of relevance to the objective seriousness of offences even where those matters were taken into account when assessing the moral culpability of the offender.
Here, her Honour found that the applicant's overwhelming desire to assist her daughter had a serious bearing on her decision to act as she did that night, that when the applicant drove towards the victims the applicant was not seeking to engage in violence but was seeking to protect her daughter, that the applicant's intention was to no more than "nudge" Kazzandra off Skye, and that the applicant's response to the threat to Skye was "not excessive by a significant margin." Like Rothman J, I consider that these matters go to, and were required to be taken into account in assessing, the objective seriousness of the offending.
Her Honour expressly considered these matters in the section of the remarks on sentence in which her Honour addressed the applicant's moral culpability. As to this, her Honour expressly found that "[t]hese considerations", which included the matters I have set out at [3] above, and the impact of the applicant's own background, led "to a substantial reduction in the [applicant's] moral culpability for offending that is otherwise, considered objectively, of considerable seriousness" (emphasis added). The use of the word "otherwise" in this context, makes it plain that those matters were not taken into account in her Honour's earlier assessment of the objective seriousness of the applicant's offending.
It should be observed that, somewhat earlier in the remarks on sentence, shortly after concluding that the objective seriousness of the offences was "considerable", her Honour said that "[i]t is accepted that the offender perceived it was necessary to act as she did in defence of Skye." This was in the context of considering a submission on behalf of the applicant that the conduct of the Widders' group was provocatory. Her Honour did not consider that "this concept [added] anything to the determination of objective seriousness." Almost immediately after these references her Honour added "I will return to considerations relevant to moral culpability shortly."
Having regard in particular to her Honour's statement that she would "return" to considerations of moral culpability, and to her Honour's analysis when considering moral culpability, which I have set out at [4] above, I would infer that, whilst her Honour referred to motive at this earlier point in the remarks on sentence, her Honour did not take these matters into account when assessing objective seriousness. Further, there is nothing to indicate that her Honour had any regard to her finding that the applicant's response to the threat to her daughter was "not excessive by a significant margin" when assessing objective seriousness.
As Rothman J explains, it follows that her Honour failed to have regard to a material consideration when sentencing the applicant.
ROTHMAN J: On 31 October 2022, the applicant, Linda Britton, was found guilty of two counts of manslaughter after trial by jury. Initially, the applicant had been charged with four counts, which included two back-up charges of driving in a manner dangerous causing death. The two manslaughter charges, therefore, were Counts 1 and 3 on the indictment.
On 13 April 2023, the applicant was sentenced at the District Court of NSW to an aggregate sentence of imprisonment of 6 years, commencing 19 January 2023, with a non-parole period of 3 years, expiring 18 January 2026. The learned sentencing judge nominated indicative sentences of 5 years' imprisonment for each offence.
The applicant seeks leave to appeal and appeals the sentence imposed upon her on the following grounds: 1. Ground 1: The sentencing judge erred in failing to take into account relevant considerations when assessing the objective seriousness of the offences. 2. Ground 2: The aggregate sentence was manifestly excessive.

Circumstances of offending

The learned sentencing judge summarised the facts leading up to and involved in the offences. No substantive issue was taken with her Honour's summary. The following summary is taken from her Honour's Remarks on Sentence.
Her Honour, for reasons which will be explained later in these reasons, could not definitively determine all the circumstances. Her Honour made clear that the events took place: in the car park, where the deaths occurred; they occurred suddenly and unexpectedly at night; and, in an atmosphere that was volatile and frightening.
In the early hours of 28 September 2019, Kazzandra Widders, was at an address in Nambucca Heads, where her brother, Harold, lived, to celebrate Harold's birthday. Kazzandra was 20 years of age and is one of the victims in these offences.
On the same afternoon, the applicant's daughter, Skye Luland, was at another address in Nambucca Heads. She was drinking alcohol and there were several younger children at the premises. At around 7.30pm, on 28 September 2019, Skye left the address on foot apparently to obtain food and drinks.
At around 9.30pm, Skye's niece, "NM", became concerned at Skye's failure to return and left to search for her Aunt. NM located Skye lying on the driveway of a nearby motel. Apparently, Skye had tried to kill herself twice by "hopping around cars" and NM and Skye argued, NM informing Skye that she could not act in that way and trying to convince Skye to return to their initial address. Skye continued to express the view that she did not want to live anymore, stood up and walked towards Giinagay Way.
At that time, Kazzandra and her two sisters were driving along Giinagay Way in order to buy mixers. As Kazzandra drove towards Skye and MS, Skye stepped in front of Kazzandra's car forcing her to swerve to miss her.
While it seems that Kazzandra and Skye were not known to each other, each had a nephew who were friends. After swerving, Kazzandra stopped the car, got out of it and began yelling at Skye. A physical altercation developed between the two. The physical altercation included pushing, hair pulling and punching. At the conclusion of the altercation, Kazzandra drove away with her sisters.
Concerned about Skye, NM tried to call an ambulance, but her phone was out of charge. Skye left and NM returned to the house to use another phone. Police received a call from NM at approximately 10.00-11.00pm. She reported what had happened. NM then rang her step-grandfather, David Luland, who was Skye's father and the applicant's partner. NM also called an ambulance.
NM informed David Luland that some girl had beaten up Skye and David Luland responded that he would be there in 10 minutes.
David Luland then called the applicant who was at their home in Nambucca Heads and informed her that a group of women had bashed Skye and that they needed to go and get her. After being dropped home, David Luland entered the applicant's car. The applicant's car was a compact Daewoo Lacetti sedan with a gross mass of 1695 kilograms. The applicant drove to the address from which NM called. The applicant had not been drinking, but David Luland had been.
NM informed Police, David Luland and the applicant that Skye had been throwing herself into traffic, stating that she wanted to kill herself and: "That a group of girls pulled over and 'bashed' her and that Skye had run away and that she ([NM]) did not know where Skye was ... [NM] also said that she had herself suffered some injuries helping Skye." [1]
The applicant was upset and stated that the persons who had assaulted Skye should be charged.
The applicant then left and took three of her grandchildren to a family residence in Macksville. NM was still at the house with the applicant's grandson, who was aged 10, and a friend of the grandson.
After dropping two off the grandchildren, the applicant returned with her eight-year-old granddaughter and picked up NM and the applicant's grandson. The grandson's friend was sent home.
While the applicant was dealing with the children, David Luland embarked on foot in search for Skye. The Police were also looking for her. At around the same time, being approximately 11.10pm, David Luland and the Police, separately, located Skye. She appeared to be uninjured and, in conversation, was dismissive about MS's report that she had been stepping in front of a car.
Initially she complained that her handbag and phone had been taken by persons who had assaulted her, but she withdrew that complaint stating that she may have left them in a bus shelter.
She was later seen by Police at a nearby bus shelter. They asked her if she had located the bag and phone and she replied in the negative but, that they should not be worried about it. David Luland and Skye then went to the Plaza Shopping Centre. The applicant drove towards the Plaza Shopping Centre with NM in the front seat and the other two grandchildren in the rear. She parked on Bellwood Road to the right of a car park.
Coincidently, the Widders group left their location in a white Commodore. Aside from the earlier altercation on Giinagay Way and the friendship between Kazzandra and Skye's nephews, the Widders group and the Luland group were unknown to each other. The Widders, in the Commodore, pulled into the nearby Plaza Shopping Centre and stopped at the other end of the car park. Four of them alighted and approached the other side of the car park where the applicant had stopped. NM alighted the applicant's car and approached Skye to hug her. The applicant got out of her car and Skye, seemingly noticing the Widders, said words to the effect: "Mum, it's them girls again."
One or more persons from the Widders group said something about their nephew asking, generally to the Luland group: "What did youse do to my nephew?" Skye replied and, during that reply, asked what had happened to her phone. Kazzandra approached Skye and started 'laying into her', saying: "I got you earlier on."
As that was happening, at least two persons obtained weapons from their respective cars - a Bundi stick and, in the case of David Luland, a plastic children's cricket bat. Sticks were also picked up from the ground.
The applicant was not the instigator of the violence in the car park but came to believe that one of the women responsible for assaulting Skye earlier when she stepped in front of the car was present, namely Kazzandra.
The applicant approached Skye, at which point someone hit the applicant "really hard" from behind. The applicant was also punched in the face while being held by her hair. The applicant managed to break away and move back towards her car, at which point she was struck to the right forearm with an object which she believed was the Bundi stick, and which was probably an injury inflicted when the applicant raised her right arm to protect her face. The applicant called out to David Luland that her arm was broken, and, at about the same time, David Luland was struck to parts of his body including his head and shoulders resulting in him passing out and falling to the ground.
At some point, NM intervened and was punched by a female and tackled to the ground. The applicant and NM managed to get back to the Daewoo which was still parked facing east on Bellwood Road. NM entered the back seat where the two grandchildren were sitting. The applicant got into the driver's side and even though she had suffered a fractured right wrist and a fractured left thumb, was able to drive.
One of the males from the Widders group was banging on the outside of the Daewoo. The two grandchildren in the rear were hysterical. "The atmosphere was charged, chaotic and frightening." NM was urging the applicant to drive, saying words to the effect: "Go Nan, just drive, Nan just drive, go."
At that point in time, the applicant started the motor vehicle and noticed that Skye and Kazzandra were engaged in an altercation in which Skye was lying face up motionless on the ground with Kazzandra leaning over her. The applicant perceived that Skye was "just getting punched and punched repeatedly…probably six, seven times to the head." [2]
The applicant felt both helpless and scared. She wanted to help Skye and made the decision to attempt to push Kazzandra off Skye with the front bumper bar of her Daewoo. She performed a 270-degree U-turn and "went fast" up the southern gutter which put her onto the grassed footpath verge on Bellwood Road. She accelerated leaving traction marks from the tyres on the grass and the car moved slightly to the right of where Kazzandra and Skye were positioned.
The front tyres of the Daewoo struck the guttering bordering the car park, leaving gutter strike marks, and the spinning front wheels left acceleration tyre marks on the concrete of the car park. The Daewoo struck and mounted the next gutter in the car park and travelled onto another grassed area. It then travelled off that grassed area and passed over another gutter leaving a breaking mark and came to land on top of both victims who were very low on the ground, compressing them and killing them.
In the summary of the learned trial judge on sentence, repeated in the immediately preceding paragraph, her Honour expressed the view that "another way of describing up and down trajectory of the car is that it 'bounced'." The applicant's car was travelling at a speed of less than 30km/h when it landed on the victims. Both victims were trapped under the Daewoo, at which point the scene became considerably more frantic. People associated with the Widders group began to hit the Daewoo with their fists and with objects. There was significant yelling on their part.
Kazzandra was trapped underneath the carriage of the car towards the front. Her cause of death was identified as multiple injuries and a mechanical asphyxia. The motor vehicle, resting on her body, had prevented her ability to breathe and her blood from circulating. Kazzandra had a blood alcohol reading of 0.179 percent at the time and a low level of cannabis was detected.
Skye was trapped underneath the carriage of the Daewoo towards the rear. The cause of death in her case was multiple injuries, particularly fractures to multiple ribs affecting her ability to breathe and blood loss. Skye had a blood alcohol reading of 0.155 percent and a low level of methylamphetamine was detected.
On postmortem, neither Skye nor Kazzandra was observed to have any significant facial injuries. Kazzandra did not have any injuries to her knuckles.
The foregoing summary of events was taken entirely from the summary of the sentencing judge and was unchallenged on appeal.

Remarks on Sentence

The learned sentencing judge summarised the facts relevant to sentencing from which the foregoing summary of facts has been taken.
It is unnecessary to summarise large parts of the Remarks on Sentence, most of which is uncontentious. As already stated, her Honour set indicative sentences of 5 years for each offence and imposed an aggregate head sentence of 6 years' imprisonment, with a non-parole period of 3 years. The maximum sentence for manslaughter is 25 years' imprisonment [3] with no prescribed standard non-parole period.
The learned sentencing judge recounted that the Crown had accepted that, at the time of the applicant's unlawful and dangerous conduct, the applicant honestly perceived it was necessary to conduct herself in that manner to defend her daughter from serious injury or death. The fundamental issue at trial was the reasonableness of the conduct of the applicant.
In other words, the trial concerned whether the defence of self-defence (in this context including defence of another) afforded a defence to the conduct of the applicant, which was, if it were not, otherwise criminal. There were issues associated with the accuracy of the observation by the applicant that her daughter was being stomped on and punched severely to the head. The medical evidence in that regard is, in the best case for the applicant, equivocal. Other witnesses testified to the same effect as the observations of the applicant.
Her Honour noted in her Remarks on Sentence that the applicant had no alcohol or drugs in her blood. She was taken to hospital to be treated for her injuries at which time a blood sample was taken.
Her Honour then recited the evidence as to the conversation between Police and the applicant. The conversation is consistent with the perception by the applicant, genuinely, that the applicant engaged in the conduct in defence of her daughter. The applicant admitted to being the driver of the vehicle that caused death.
Her Honour also recounted the injuries to the applicant; to David Luland; and to Harold Widders Jr. There were less serious injuries to others, some of which are recited by her Honour.
Her Honour then detailed the distance travelled by the Daewoo from its parked position to the point at which it landed on the victims, being at least 17.5 metres, not including the distance involved in performing the U-turn. Her Honour remarked that the Daewoo travelled a relatively short distance over a short period of time.
Her Honour qualified submissions made on the demeanour of the members of the Widders group on the basis that the demeanour disclosed in the Police body worn cameras, was taken at a time after the incident, when the members of the group knew that their loved one had been trapped underneath the car or may have known that she was already deceased and is not, therefore, necessarily indicative of their demeanour before the victim had been trapped.
Her Honour then dealt with other paragraphs of the written submissions on behalf of the applicant, after which her Honour remarked that she was moving "now to a consideration of the objective gravity of the offence which [her Honour found] to be considerable for the following reasons." [4]
After reciting that the offences of manslaughter did not involve, and the applicant was not to be sentenced on the basis of, the existence of an intention to kill or even to cause "serious harm", her Honour remarked that, rather, she is to be sentenced for the commission of an unlawful and dangerous act that led to the death of the two victims. Nevertheless, the offence is one for which, in her Honour's Remarks on Sentence, a critical consideration will be the taking of a human life, or, in this case, the taking of two lives including the life of her own daughter.
Further, the Remarks on Sentence indicate her Honour's view that this was not a case where the applicant wanted only to frighten the victim, or one of them, but inadvertently struck her. It involved the deliberate use of a motor vehicle as a weapon intending to cause the vehicle to make contact with one of the victims to "nudge" her off the applicant's daughter.
Her Honour found that the: "Dangerousness of [the applicant's] conduct was high in the sense that a reasonable person in her position would have appreciated that her actions exposed both victims to an appreciable risk of serious injury including a risk of physical injury as a result of the vehicle striking one or both victims, and a risk of one or both victims being run over and/or crushed by the weight of the car."
Her Honour noted three aspects which her Honour said had a bearing on the dangerousness of the applicant's conduct, being: 1. the applicant had been assaulted and knew her right wrist had been injured and was painful and floppy when she drove the car; 2. the victims were not standing in an upright position but were low to the ground and did not have the benefit of being warned of her approach by, for example, the beeping of the car horn or flashing of headlights - conduct which would not have endangered life; and 3. the car was being driven along a route that was not an established route but the approach was from an unexpected direction along a path that involved travel up and down curves.
Her Honour then listed mitigatory factors in the determination of objective seriousness. These included: spontaneity and the fact that the actions were unplanned; and the actions were the result of a spur of the moment decision made in extreme panic and in a chaotic, volatile and frightening atmosphere. Further, the conduct that led to the commission of the offences took place over a very short period of time.
Her Honour dismissed the conduct of the Widders group as provocatory and did not consider that such a concept added anything to the determination of objective seriousness. Her Honour accepted that the applicant perceived it was necessary to act as she did in defence of her daughter. Such an acceptance, her Honour noted, acknowledges that the applicant was reacting to conduct on the part of others.
Thereafter, her Honour made the following remark: "I will return to considerations relevant to moral culpability shortly." [5]
The learned sentencing judge then dealt with the personal circumstances of the applicant. It is unnecessary to summarise them at this point. Then her Honour remarked: "An assessment of the offender's moral culpability is an essential part of the sentencing exercise." [6]
Her Honour then dealt with personal circumstances relating to her history of abuse. She also provided information about the sexual abuse of Skye by Skye's then partner and the applicant's guilt at failing to protect Skye from that abuse. The learned sentencing judge accepted that the applicant's overwhelming desire to assist Skye in the face of her post-traumatic stress disorder ("PTSD") and belief she had failed to protect her daughter in the past, had a serious bearing on her decision to act as she did during the incident.
The applicant, on her Honour's findings, reacted to a threat she perceived was being made to her daughter's life. Her Honour also noted that the injuries to the applicant and to David Luland demonstrated the seriousness of the threat to which the applicant was responding.
Her Honour then said: "When she [the applicant] drove towards the victims, the [applicant] was not seeking to engage in violence but was seeking to protect her daughter and her intention was to do no more than "nudge" Kazzandra off Skye. She believed what she did was necessary and was the only option available to her to protect her daughter. In all the circumstances, while her response to that threat was excessive, it was not excessive by a significant margin. These considerations, coupled with the application of the principles of Bugmy v The Queen [2013] HCA 37 arising from the [applicant's] own background which left its mark on her and caused her to feel that she had failed Skye in a context which Skye had experienced similar events in her own life, leads to a substantial reduction in the [applicant's] moral culpability for offending that was otherwise, considered objectively, of considerable seriousness." [7]
Her Honour took the view that the factors mentioned in the above extract also reduced the extent to which the applicant is an appropriate subject for general deterrence. Her Honour suggested that this is not a case for specific deterrence.
Her Honour referred to the applicant's history of offending, which included drug offences, assault offences, contraventions of an Apprehended Violence Order ("AVO") and a high range PCA. None of the offending resulted in the imposition of a prison sentence as a consequence of which the applicant is now serving her first term of imprisonment.
Her Honour then referred to the conviction against the applicant in 2018 for common assault for which a Conditional Release Order ("CRO") was imposed, which was binding on the applicant at the time of offences, the sentence for which is now under appeal. Her Honour took the view that the circumstance that the applicant was on a bond, at the time of the commission of the offence, was not, in the particular circumstances of this sentence and these offences, a matter of aggravation and also took no action in relation to the breach. Her Honour took the view that, in light of the applicant's antecedents, she was not disentitled to a degree of leniency.
Her Honour also found that there was little or no risk of re-offending and her prospects of rehabilitation were good. Her Honour explained the remorse and guilt felt by the applicant at causing the death of her own daughter whom she sought to protect and discussed the more complicated nature of the applicant's feelings towards the offending that caused the loss of life to Kazzandra.
Her Honour took the view that the applicant had not reached full insight into her offending but found that she was remorseful that the lives of two young women had been lost, with which fact she will live each day. Her Honour found that the applicant would benefit significantly from psychological support.
Her Honour also took into account the applicant's early admissions as to being the driver, which significantly assisted the investigations and was otherwise a matter that may have been in contention, given that a number of witnesses considered that David Luland may have been the driver and he was found in the driver's seat when the Police arrived.
Her Honour also took into account the delay in the trial resolving, which was greater than the usual time taken for a matter to travel through the criminal justice system and involved delays in the case conferencing process and an aborted first trial on account of jury impropriety.
The applicant and her extended family were compelled to leave Nambucca Heads as a result of threats of violence and her Honour accepted this constituted a form of extra curial punishment.
Her Honour considered it unproductive to consider the history of sentences imposed for the offence of Dangerous Driving Occasioning Death, relying on the description of Howie J of the hierarchy of offences in relation to motor vehicles, with manslaughter at the pinnacle of that structure. [8]
As is obvious from the earlier recital of sentences imposed and the indicative sentence, her Honour took into account that the two offences arose out of one incident of driving but was unable to determine that the sentence for one offence encompassed the criminality for the other offence and therefore accumulated the sentence by 12 months for the additional manslaughter.

Ground 1: Failure to Take Into Account Relevant Considerations When Assessing Objective Seriousness

The applicant argued that the learned sentencing judge, in assessing the objective seriousness of the offences, expressed no consideration of: 1. the motivation for the offending, being to defend the applicant's daughter and save her life; 2. the applicant's intention to do no more than make contact with the victim other than her daughter, with the bumper bar at a slow speed and "nudge" her off her daughter; 3. the belief that the action was necessary to defend her daughter and that it was the only option available to her; and 4. the applicant's response was excessive, but not by a significant margin.
Each of the foregoing were findings of her Honour that were taken into account in assessing moral culpability but, on the submission of the applicant, were not taken into account in assessing objectiveness seriousness. These considerations were the subject of submission on objective seriousness before the sentencing judge.
On this ground, the Crown submits that the evaluation of objective seriousness is "quintessentially" a matter for the sentencing judge. The facts on sentence were well known to her Honour and her Honour observed, early in her Remarks on Sentence, that the Crown did not dispute that the applicant believed it was necessary to engage in the conduct to defend her daughter.
The Crown referred to the Remarks on Sentence at 19.5 [9] that, in assessing objective gravity, the learned sentencing judge had regard to the applicant's intention "to cause the vehicle to make contact with Kazzandra so as to 'nudge' her off Skye." The Crown also relied upon the passage at Appeal Book p 27 (Remarks on Sentence at 20.7) in her Honour's Remarks on Sentence, summarised above, mitigating objective seriousness, including "spontaneous and unplanned" conduct, "extreme panic", "volatile and frightening atmosphere" and that the offences occurred over a "very short period of time." The Crown also relied upon the passage at Appeal Book p 27 (Remarks on Sentence at 20.7) to the effect that the applicant perceived it was necessary to act in defence of her daughter.
The Crown submitted that it was unnecessary for her Honour to repeat those factors that were relevant to moral culpability and taken into account by her Honour in express terms in dealing with the objective seriousness with which the offence was assessed. Further, even though her Honour did not describe the extent to which the applicant's conduct went beyond that which was reasonable in dealing with objective seriousness, the Crown submits that her Honour took into account, in assessing the objective gravity of the offences, all of the facts that gave rise to that issue and which were noted in dealing with objective seriousness.
The Crown submits that the sentencing judge was able to assess the objective seriousness as considerable in circumstances where the applicant intended to use her vehicle as a weapon, a vehicle weighing almost 1700 kilograms, and intended to do more than merely frighten the victim, or one of them. Further, the dangerousness of the applicant's conduct was high; she drove deliberately at Kazzandra; the route taken was not an established route, but a route over two grass verges which required her to "go fast" up the first gutter, accelerate over the first grass verge and continue on to a section of the car park where she again left acceleration marks before travelling over the second grass area, where the vehicle left brake marks.
The applicant was required to accelerate significantly to reach between 20 and 30 kilometres over a relatively short distance and did so at a time when her ability to navigate the vehicle was compromised by her injuries. As noted by her Honour, the Crown submits that the applicant did not utilise the horn or flash headlights as an alternative means of breaking up the physical altercation or to alert the victims to her impending approach.
The Crown also relied upon the use of the term "otherwise" in relation to the objective consideration of considerable seriousness. [10]

Ground 2: Manifest Excess

The applicant submits that the assessment of objective seriousness as "considerable" was too high. First, on the submission, her Honour erred, in taking into account in assessing objective seriousness, that two lives were taken, because the fact that death resulted is common in all manslaughter offences. It is not, therefore, on the submission, a fact in determining the level of objective seriousness of a particular offence.
Secondly, the applicant submits that while unlawful death can be very serious, some cases of manslaughter allow for a non-custodial sentence, which demonstrates the need to approach the fact of death with care and to be weary of generalisations.
Thirdly, to the extent that the sentencing judge took into account the fact that two lives were taken, rather than one, when assessing the objective seriousness of each particular offence, that would effectively constitute erroneous double counting. The submissions on manifest excess repeat, to some extent, understandably, the factors relating to consideration of objective seriousness.
The applicant then relies upon the reference to Bugmy considerations to which her Honour referred and the existence of PTSD arising from that traumatic childhood. There was also a reduced need for general deterrence and her Honour's expression that weight needed to be given to "discourage and not condone the use of motor vehicles", utilises the applicant as a vehicle for general deterrence in circumstances where the applicant was "an entirely inappropriate vehicle for general deterrence".
Further to the foregoing, the "use" of the motor vehicle as a weapon was limited to an intention to make contact at a very slow speed; engaged in circumstances where the applicant believed it was necessary to defend her daughter and was the only option available to her; decided upon instinctively in a chaotic, volatile and frightening atmosphere where the applicant had been seriously assaulted; and engaged as a consequence of the applicant's PTSD which resulted in a feeling of failure to protect her daughter and an overwhelming need to protect her in the current situation. The applicant submitted that the indicative sentences were unreasonable and plainly unjust and the aggregate sentence manifestly excessive.
The Crown referred the Court to the various authorities on manifest excess; that the applicant stood to be sentenced to two offences of manslaughter, each of which carried a maximum penalty of 25 years imprisonment; and that the sentence to be imposed must be such as properly to reflect the fact that the offence involved the taking of human life. Each of those offences was assessed by the sentencing judge as being of "considerable" objective seriousness.
The reference to the taking of two lives was not indicative of double counting, on the submission of the Crown, but, rather, the statement of an incontrovertible fact and that her Honour recognised that each of the offences related only to a single victim.
The Crown also submitted that even though the subjective circumstances of the applicant were referred to, the applicant was not an "entirely inappropriate vehicle for general deterrence" [11] but rendered the applicant less appropriate as a vehicle for general deterrence, which was the submission before the sentencing judge. The lessening of the appropriateness of the applicant as a vehicle for general deterrence does not render general deterrence of no weight.
As to the submissions as to the use of the vehicle, once the applicant decided to use her vehicle to make contact with Kazzandra (even for the purpose of a "nudge"), the vehicle was being used as a weapon.
The Crown also defended the sentencing judge's application of the principle of totality and submitted that the applicant enjoyed the benefit of a "very generous" finding of special circumstances, by which I understand the submission to be that the effect of the finding of special circumstances was "very generous". The Crown submits that the sentence imposed, after trial, is neither unreasonable nor plainly unjust.

Consideration

The Court has been asked to intervene in the sentence imposed upon the applicant on two fundamentally different bases. Ground 1 is alleged to be an identifiable error. Ground 2 relies upon manifest error.
It is now trite that for an intermediate appellate court to intervene in the exercise of a discretion, including the imposition of a sentence, the Court is required to find that the judicial officer, at first instance, has acted upon a wrong principle; has allowed extraneous or irrelevant matters to guide or affect the exercise of discretion; has mistaken the facts; or has failed to take into account some material consideration. [12]
If an error of the foregoing kind cannot be identified, an appeal court may nevertheless intervene if it were to appear to the court that, on the facts and circumstances before it, the result is unreasonable or plainly unjust. In those circumstances, the court infers error of the kind to which reference is above made, even though it cannot be identified. Such an error is manifest error and, as stated, may be corrected only in circumstances where the result is "unreasonable or plainly unjust." [13]
In Obeid, [14] supra, this Court summarised the principles applicable to intervention based upon manifest error and said at [443] (R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed): "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Ordinarily, if an identifiable error is disclosed, there is a requirement on the appeal court to re-sentence and submissions on manifest error, be it manifest excess or manifest inadequacy, fall away. Nevertheless, such submissions are relevant to the sentence to be imposed in the re-sentencing exercise of the appeal court.
In dealing with whether error has been disclosed in the Remarks on Sentence of a judicial officer, it is important to reiterate that a court on appeal should not be concerned with "looseness of language", nor "unhappy phrasing". [15] Further, once an appeal court has identified error then any excess or inadequacy may be explained in which case it would be unnecessary to determine whether manifest error has occurred. Whether or not the identifiable error explains any arguable manifest excess or inadequacy, the circumstance that the appeal court is required to re-sentence renders academic, any ground relying upon manifest error.
It is necessary also to deal with the process of sentencing in order to explain that which the learned sentencing judge undertook and that which the Court is required to examine. Regardless of the seriousness of a charge compared with other charges, the Court is required to assess the objective seriousness of a particular offence within the range of conduct covered by the offence. It is necessary to assess the conduct of the applicant to determine where, objectively, in the range of seriousness of the offence of manslaughter, this offence fits. This was the exercise performed by the learned sentencing judge.
While the maximum sentence for manslaughter is 25 years' imprisonment, such a maximum sentence is imposed only in circumstances where the objective seriousness of the offence, and the subjective circumstances of the applicant, warrant the imposition of the maximum sentence. While the term has been deprecated, it was earlier stated that the maximum sentence was applicable only in the "worst category of cases".
In fixing a sentence, a sentencing judge is required to consider both the objective circumstances of the conduct and the subjective aspects relating to the applicant. A sentence is imposed that seeks to achieve the purposes of sentencing as prescribed by s 3A of the Crimes Sentencing (Procedure) Act 1999 (NSW). Those prescribed purposes reflect previous common law principles and include: the protection of society; the deterrence of the applicant, and of others who might be tempted to offend; retribution and reform.
The foregoing objectives overlap and may often, if not always, point in different directions. None of the purposes can be considered in isolation and each is a guidepost to the appropriate sentence to be imposed.
Sentencing is neither logical nor mathematical. The process of sentencing is often described as "intuitive" or "instinctive" synthesis. Such a process requires the assessment and weighing of each of the objective and subjective circumstances in order to achieve an appropriate sentence that, in the view of the sentencing judge, fulfils the overall objectives undertaken in the sentencing process. [16]
The determination of objective seriousness requires a process that may seem difficult to understand for those who are unfamiliar with the process of sentencing. The difficulty is exacerbated when one is dealing with a serious crime.
In fixing an appropriate sentence, the Court is required to assess the objective seriousness of the offence, as earlier stated. In doing so, the Court examines the range of conduct that may generally be involved in the offence that has been committed. It is therefore necessary to assess the conduct of the applicant to determine where, in the range of seriousness of conduct, that gave rise to the offence, an offence may fit. The Court in so doing assesses the level of objective seriousness of the offence with which the Court is dealing within the range that exists for an offence of such a kind.
It is only in circumstances where the conduct involved, compared with other conduct that could give rise to an offence of this kind in other circumstances, is so grave as to warrant the maximum penalty that the Court could appropriately impose the maximum penalty. In so doing, the Court is not confined to an offence for which it is impossible to conceive of an even worse instance.
In assessing objective seriousness, the Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of worst-case, or lower on the scale of seriousness. The scale is the notional range between the lowest level of seriousness and the worst category of cases.
The relative seriousness of an offence, compared with other different offences, is established by the legislature. The objective seriousness of an offence, ascertained for the purpose of sentencing, is the objective assessment of seriousness of the particular offence within the range of seriousness for that particular offence.
In that respect, it is appropriate to note that the taking of human life is always serious. For that reason, the legislature has set the maximum sentence prescribed by the legislation for each of murder and manslaughter. That the applicant has taken a life is a necessary aspect of each of murder and manslaughter and does not impact where, in the range of conduct that may give rise to murder or manslaughter, a particular offence may fit.
The sanctity of human life is an important aspect of criminal law which the legislature has factored into the maximum sentences available for each of murder and manslaughter. Where a life has been taken with an intention so to do, or even with the lesser intention of causing really serious injury, the conduct amounts to murder and is said to be the most serious crime in the criminal calendar. The maximum sentence for such a crime is life imprisonment.
Manslaughter, relevant to these proceedings, is caused by an unlawful and dangerous act. Manslaughter encompasses every kind of punishable homicide, other than murder.
Manslaughter still involves punishment for the taking of a human life, but in circumstances that do not involve an intention that renders the injury in the more serious category of murder. It was best described in the following passage: "The crime of manslaughter comprehends all forms of punishable homicide other than murder. For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, … involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case." [17]
As already indicated, manslaughter involves the broadest range of conduct and does not easily fit within particular pigeonholes or comparisons between one offence and one offender and others. The Court is required to arrive at a sentence that is just, in all the circumstances. This involves individualised justice and a wide sentencing discretion. [18]
Some factors may be relevant both to the objective seriousness of an offence and the subjective circumstances of the offender, including moral culpability. Mental illness is an obvious example as is the age of the offender. Others may include motive and provocation. [19]
In DS, [20] the Court clarified that there is a clear distinction between objective seriousness of an offence and the moral culpability of an offender. Nevertheless, some of the circumstances that should be considered in determining moral culpability may be relevant to the determination of objective seriousness, such as provocation, motive, mental illness, and perceived self‑defence.
The fact that a particular circumstance may be relevant to both objective seriousness and moral culpability or subjective circumstances, does not necessitate double counting. As earlier stated, the process of sentencing is intuitive or instinctive and the determination of an appropriate sentence, bearing in mind such factors in each of objective and subjective circumstances, is inherent in the process and that which, with other factors, renders the exercise a difficult one.
As already indicated, in the summary of the Remarks on Sentence, her Honour [21] assessed the "objective gravity of the offences" as "considerable". Her Honour then set out the reasons, which it is unnecessary to repeat.
While her Honour "accepted" that the offence was committed in circumstances that were perceived by the applicant as necessary in defence of her daughter, the comment was a prelude to the expression of opinion that her Honour would return to considerations relevant to moral culpability. Her Honour then dealt with, inter alia, moral culpability, which her Honour suggested was "an essential part of the sentencing exercise".
Her Honour then expressed the view that the considerations that her Honour mentioned, led to a substantial reduction in the applicant's "moral culpability for offending that was otherwise, considered objectively, of considerable seriousness". In other words, the use of the term "otherwise" did not signify an alteration in her Honour's assessment of the objective seriousness.
In other words, her Honour's assessment of the objective gravity or objective seriousness of the offence as "considerable" was not performed having regard to the factors her Honour later mentioned, including acting in defence of her daughter. Moreover, her Honour seems to differentiate between the subjective and objective elements of self-defence or defence of another.
Her Honour referred to the applicant perceiving "it was necessary to act as she did". This is a reference to the objective aspects of self-defence (which term I use here to include defence of another).
Self-defence requires two aspects: the subjective motivation for the act, being that the act was done in defence of oneself or another; and, that the act done was reasonable. In this case, it was accepted that the subjective element was satisfied and the applicant acted in defence of her daughter.
The issue in the trial was whether the conduct was reasonable in all the circumstances, which, by virtue of the verdict reached, the jury did not accept. Nevertheless, her Honour accepted that the applicant perceived it was necessary and/or reasonable.
There is one of two errors that are fundamental in the foregoing. Either the learned sentencing judge has not factored into the assessment of objective seriousness, a circumstance that the applicant was acting in defence of her daughter; or, if the expression recited above was intended to deal with that issue, then the learned sentencing judge has not factored into the assessment, the circumstance that the response in defence of her daughter, while excessive, was not excessive by a significant margin. The last-mentioned aspect was a consideration in moral culpability, but not in the objective seriousness of the offence committed.
There is a difference between accepting that the applicant perceived it was necessary to act in defence of her daughter and accepting that the applicant acted in defence of her daughter to which her Honour referred under moral culpability but not in assessing objective seriousness. The only issue in dispute between the Crown and the applicant at trial, was whether, in acting in defence of her daughter, which the applicant did, the applicant's act was a reasonable response in all of the circumstances.
It is necessary to bear in mind the admonition that the Court should not examine the Remarks on Sentence with an eye "finely tuned to error." [22] However, it would seem that the insignificant excess in the response was a factor that her Honour did not take into account in determining objective seriousness and concluding that the objective seriousness was "considerable."
In those circumstances, the learned sentencing judge has failed to take into account a material consideration and there is an identifiable error in the sentencing exercise. Ground 1 has been established and, pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court should quash the sentence and move to re-sentencing. The omission is material and I do not consider that no lesser sentence is warranted in law.
As a consequence of the finding in relation to Ground 1, it is strictly unnecessary to deal with the submissions on manifest excess. Nevertheless, those submissions are relevant, in a different context, to the exercise that needs to be undertaken by the Court, on re‑sentencing the applicant.

Re-Sentencing

The circumstances of the offence have been summarised above and it is unnecessary to reiterate those circumstances. It is necessary to make some further comments in relation to the assessment of objective seriousness. This a truly exceptional set of circumstances.
First, the uncontroversial circumstance, namely, that the applicant was acting in defence of her daughter, is a matter that is relevant to the determination of objective seriousness and should be taken into account. Secondly, I agree with the assessment of the learned sentencing judge that the degree to which the applicant responded to the threat to her daughter was not excessive by a significant margin.
The degree to which the conduct in response to the threat to her daughter was unreasonable or excessive is an important aspect to be factored into the determination of objective seriousness. Whether reasonable or unreasonable, it is also important to remark that the applicant, even in hindsight, could not identify other action she could have taken that would have been effective in relieving her daughter of the perceived threat and causing the assault to cease.
Given the injuries that the applicant had sustained, it would have been difficult for the applicant to intervene personally to break up the fight or to stop the threat to her daughter. The obvious recourse was to have called the Police, but it is unclear what, if any, delay would occur from such a course.
More importantly, the action that the applicant undertook was a serious risk to the safety of the two victims and others in circumstances where, objectively, the risk to the applicant's daughter arising from the assault involved far less injury.
In discussing the issue of objective seriousness, the learned sentencing judge dealt with the speed at which the applicant was driving, being 20-30kph, in the short distance of 17.5 metres. In so doing, the learned sentencing judge concentrated on the speed of the vehicle. Such speed, or more accurately the velocity, being the speed in the direction of the victims, is relevant to objective seriousness and to the subjective circumstances of the offence and of the applicant.
The speed, at which the applicant was travelling towards the victims, discloses that the stated intention of the applicant only to "nudge" Kazzandra, is objectively confirmed. It discloses that the applicant was not seeking to move quickly or travel at an excessive speed.
However, it has less relevance to circumstances of the offence itself. As already summarised, the applicant drove the car over two kerbs and grass verges. At the last grass verge, there were brake marks, which discloses that the applicant was seeking to slow down. More importantly, the car did not hit the victims head on. Because the car did not hit the victims head on, the linear velocity of the car is only indirectly relevant.
In order to drive over the two kerbs, and the grass verges, a driver would be required to increase the power or torque of the vehicle, rather than its speed. At the time of the incident, the vehicle landed on top of the two victims. Given that the car did not drive over the victims, the front wheels of the car necessarily were in the air. This is a description given by witnesses.
The Daewoo Lacetti is a compact car (forerunner to the Holden Cruze), which is front wheel drive. Because the Daewoo is front wheel drive, once the front wheels were airborne, the car was incapable of accelerating or sustaining its speed.
Rather, the damage was done by the effect of the car pivoting on its rear wheels and moving downwards on top of the victims. Further, the weight of the vehicle that crushed the victims, was not the totality of the weight of the vehicle, because the vehicle was hinged by its back tyres and the weight that ultimately crushed the victims is relevant to the angle from horizontal from which the bottom of the car dropped. It is unnecessary to be any more technical.
However, the power utilised to mount the kerb (or both of them), and move across the grass verges, would have accelerated the car, until it became airborne. The force which ultimately caused the death was dependant upon the height of the front wheels (or, more accurately, the part of the bottom of the car that ultimately made contact with each victim). The velocity (being the speed towards the victims) of the motor vehicle is relevant only to the issue of the intention of the applicant and in calculating the circular motion of the car in a downward direction.
Whatever be the mechanism by which death was caused to each of the victims, it was caused by the applicant driving in the manner that she did over a route that caused the vehicle to act as it did.
While dealing with objective seriousness, it is necessary to deal with a submission of the applicant that the sanctity of human life, or seriousness of taking human life, is not a factor in determining the objective seriousness of the offence. Of course, the circumstance that manslaughter involves the unlawful killing of another human being, and the sanctity with which the law treats human life, are factors which render manslaughter, and its more serious counterpart, murder, serious offences.
The seriousness of those offences is exemplified by the maximum sentence fixed by the legislature. It is not an error for a sentencing judge to remark that the taking of human life is a serious offence and impacts the objective seriousness of the offence in question. Such a remark does no more than reflect the seriousness with which the legislature treats such offences. On the other hand, such a remark says nothing about the relative seriousness of the offence within the range of offences that may comprise manslaughter.
Given the circumstances of this offending, I would assess the objective seriousness of the offence as well below mid-range in seriousness.
In terms of subjective circumstances, I rely upon those matters to which the learned sentencing judge referred without rehearsing them or reiterating them. Most of them have been the subject of earlier comment in these reasons.
One of the matters, to which earlier reference has not been made, is the evidence relating to the childhood of the applicant. The applicant had a difficult childhood which involved sexual and physical abuse and a dysfunctional upbringing.
The applicant left home at 15 and was in foster care for a year before falling pregnant with a partner who was, once more, physically abusive. As the sentencing judge correctly noted, the applicant's upbringing falls within the principles to which the High Court referred in Bugmy. [23] As commented by the learned sentencing judge, those factors lead to a substantial reduction in the applicant's moral culpability for the offending and I allow for that factor in the sentence to be imposed.
The applicant has a criminal history although none of that history is of the seriousness of the offences with which we are now dealing. She had early assault offences, although they seem relatively minor, and was convicted of drug offences. The applicant was also convicted of contravening an AVO Order and driving with a high range of the prescribed concentration of alcohol.
In 2018, the applicant was convicted of common assault and a CRO, as earlier stated, was imposed upon her. The current offence occurred at the time that the applicant was on this conditional liberty. I also agree with the learned sentencing judge that, given the extraordinary circumstances of this offending, the history of offending does not operate to disentitle the applicant to a degree of leniency.
As it has been pointed out by both the learned sentencing judge and earlier in these reasons, the only issue before the Court at trial was whether the conduct of the applicant was a reasonable response in the circumstances as the applicant perceived them. As a consequence, much of the controversy in evidence was avoided.
Given that witnesses in the Widders group stated that David Luland was driving the vehicle at the time of the incident, the admission of the applicant that she was driving the vehicle was extremely important to the administration of justice. If each of the applicant and David Luland were to have denied driving the vehicle (or not admitted to it), it may have been very difficult for the Crown to prove beyond reasonable doubt that the applicant was driving the vehicle. The applicant's admission was extremely significant. Further, it discloses that the applicant has taken responsibility for the conduct.
The admission by the applicant of the fact that she was driving the vehicle at the time facilitated the administration of justice to a significant degree, as did the conduct of the proceedings on that basis and with the limited area of controversy involved. Because of that facilitation, the Court is entitled to impose a lesser penalty than would otherwise be the case under either or both s 22A and s 23 of the Crimes (Sentencing Procedure) Act. Of course, the Court is not entitled to impose a sentence that is "unreasonably" disproportionate to the nature and circumstances of the offence, but it is important to understand that what is prohibited is an unreasonably disproportionate sentence, not a disproportionate sentence.
I also accept and would emphasise that the applicant's risk of re-offending is such that there is no real chance of similar offending occurring again. I also consider that the applicant's prospects of rehabilitation are extremely good.
I take a slightly different view of remorse and contrition than did the sentencing judge. As did the sentencing judge, I consider that remorse is extreme in relation to the death of the applicant's daughter but do not consider that the remorse in relation to Kazzandra is as complete. While the applicant takes responsibility for the conduct and acknowledges the injury caused by her conduct, her attitude to the conduct, in so far as it affects Kazzandra, does not, in my view, involve deep shame at the commission of the offence and engaging in the conduct in question.
There is also the issue of extra curial punishment. Over and above the factors mentioned by her Honour, because the applicant's daughter is a victim of the offence, the necessary and unintended effect of the applicant's offending is that the applicant will live the rest of her life without her daughter and with the knowledge that her conduct caused her daughter's death, in circumstances where the applicant was seeking to protect her daughter. In those circumstances, while not as profound a punishment as that to which this Court referred in Douglass [24] , some allowance for this additional extra curial effect should be made. In Douglass, this Court said at [13] (R A Hulme J, with whom Spigelman CJ and Howie J agreed): "The second is the situation of the applicant himself. Although any death or permanent injury to a family member caused by stupidity such as that of the applicant will almost inevitably have repercussions which amount to some punishment of the offender, such consequences cannot in the ordinary case be allowed to substitute for that for which Parliament has provided. But in this case, the impact on the applicant is such that those consequences may fairly be taken into account. The extent to which he has immersed himself in his wife's care provides justification for the observation of counsel for the applicant that the applicant has effectively served some three and a half years' home detention during the time that his wife has been out of hospital since the accident." [25]
The Court must be particularly careful in allowing extra curial punishment as a factor in the determination of the sentence because, particularly in circumstances such as the present, one cannot substitute the difficulties associated with the effect of criminal punishment with the punishment prescribed by the legislature. Nevertheless, at least in relation to the manslaughter of Skye, the effect on the applicant is profound.
As already stated, I find special circumstances, as did the sentencing judge. The prospects of rehabilitation and the confidence with which the Court can approach the likelihood of any re-offending is such that the non-parole period can be significantly shorter than the ratio prescribed by the statute. There is an important and significant need for the applicant to be treated in the community over an extensive period, particularly because this offence itself may exacerbate the PTSD suffered and the feelings as to the failure to protect her daughter.
Lastly, there is the issue of totality. The two offences arise out of the one course of conduct. More importantly, the two offences arise out of the one act in circumstances where there was no intention to inflict serious damage on anyone. The circumstance that as a result of the conduct there were two deaths is a wholly unintended and unexpected effect of the applicant's conduct. It is, however, a factor that has been measured in assessing the dangerousness of the conduct.
I consider it is appropriate to impose an aggregate sentence. I note that, in my view, the threshold set by s 5 of the Crimes (Sentencing Procedure) Act has been satisfied and a full-time custodial sentence is appropriate, and no other sentence is appropriate. Given the comments earlier made in these reasons relating to the difference in the two offences in remorse, and the effect of extra curial punishment, I would not set the same punishment for each offence. I would propose that an aggregate sentence be imposed, and I nominate the following indicative sentences: 1. for the unlawful killing of Skye Luland as charged in Count 3, 4 years' imprisonment; 2. for the unlawful killing of Kazzandra Widders as charged in Count 1, 4 years and 3 months' imprisonment.
In part, because the legislature has recognised the range of sentences that are capable of being appropriate for manslaughter, it has not set a standard non‑parole period and I do not set a non-parole period in the indicative sentence.
I propose that the Court impose an aggregate sentence of imprisonment of 5 years commencing 19 January 2023 and expiring 18 January 2028, with a non‑parole period of 2 years and 3 months, expiring 18 April 2025.
While the circumstances of the offending is such that it is most unlikely that a High Risk Offenders Order will be necessary, the Court, assuming it accepts the foregoing proposals, is also required to warn the applicant that because the sentence imposed upon her is for manslaughter and carries a maximum sentence of 25 years, the State is capable of making an application to the Supreme Court before the expiry of her sentence to obtain orders under the Crimes (High Risk Offenders) Act 2006 (NSW).
In the circumstances, I propose that the Court make the following Orders: 1. Grant leave to appeal. 2. Allow the Appeal. 3. Quash the sentence imposed on the applicant by the District Court on 13 April 2023. 4. Impose the following sentence on the applicant: 1. Record a conviction for 2 Counts of unlawful killing on 28 September 2019, the victims for which were Kazzandra Widders and Skye Luland. 2. Impose an aggregate sentence of a non-parole period of 2 years and 3 months commencing 19 January 2023 and expiring 18 April 2025 with a remainder of term of a further 2 years and 9 months, expiring 18 January 2028. 1. The applicant is first eligible for parole on 18 April 2025. 2. The applicant is warned that as a result of these offences, the State may apply for an Order under the Crimes (High Risk Offenders) Act 2006 (NSW) by which she may, after the expiry of her sentence or after parole, be governed by supervision orders and/or continuing detention.
YEHIA J: I have had the advantage of reading the draft judgment of Rothman J and am grateful for his Honour's summary of the facts and the Remarks on Sentence. I agree with his Honour's proposed orders. I have also had the advantage of reading the additional observations of Stern JA, with which I agree. In agreeing with the proposed orders, I make the following observations.
The sentencing judge was faced with a difficult sentencing exercise given the unique set of circumstances which resulted in the tragic death of two young women, one of them being the applicant's daughter. The error that has been established is in part due to what can be described as a vexing issue for sentencing judges in determining the factors relevant to an assessment of objective seriousness on the one hand and moral culpability, on the other.
The sentencing exercise is a complex but integrated process requiring an evaluative assessment of all relevant factors in determining the proportionate sentence. An assessment of the objective seriousness of an offence and the moral culpability of an offender, are essential components of the sentencing process. The objective seriousness of an offence relates to the circumstances of the offending, while moral culpability relates to the moral blameworthiness of the offender. However, the factors informing an assessment of objective seriousness and moral culpability can sometimes overlap, and have, on occasion, resulted in a conflation of the two concepts.
In Paterson v R [2021] NSWCCA 273, Beech-Jones CJ at CL (as his Honour then was) stated as follows at [29]: "In relation to ground 1, it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the "objective seriousness" of an offence and the "moral culpability" of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender's moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55])."
In Tepania v R [2018] NSWCCA 247 at [112] Johnson J described the matters that can bear upon the assessment of objective seriousness as follows: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
In practice, the distinction between factors personal to the offender that are relevant only to an assessment of moral culpability and factors personal to the offender that are relevant only to an assessment of objective seriousness, is not a straightforward one. The present case demonstrates the complexity of the issue. The sentencing judge took into account, in assessing the applicant's moral culpability, the applicant's motivation, namely, her genuine belief that she had to act as she did to defend her daughter. Although this was a factor going to the state of mind of the applicant, and therefore arguably a factor personal to the applicant, it was causally connected with the commission of the offences and therefore relevant to an assessment of the objective seriousness of the offence.
Equally, the finding that the applicant's response in defence of her daughter, while excessive, was not excessive by a significant margin, is a factor relevant to the circumstances of the offending and, thereby, an assessment of the objective seriousness of the offence.
In DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, this Court (Beech-Jones CJ at CL (as his Honour then was), N Adams and Cavanagh JJ) rejected an argument that an assessment of an offender's moral culpability forms part of the determination of the objective seriousness of their offending. The Court again emphasised that the objective seriousness of an offence and the moral culpability of the offender are separate but related concepts: see also Russell v R (2023) 112 NSWLR 533; [2023] NSWCCA 272 at [423].
Although the sentencing judge, in her careful Remarks on Sentence, took into account these factors in reducing the applicant's moral culpability, they were factors relevant to the assessment of the objective seriousness of the offences, a separate, albeit related, concept.

Endnotes

Appeal Book p 14, Remarks on Sentence, p 7.
Appeal Book p 18, Remarks on Sentence, p 11.
Crimes Act 1900 (NSW), s 24.
Appeal Book p 25-26, Remarks on Sentence p 18-19.
Appeal Book p 27, Remarks on Sentence p 20.
Appeal Book p 30, Remarks on Sentence p 23.
Appeal Book p 32, Remarks on Sentence p 25.
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [58].
Appeal Book p 26.
Appeal Book p 32, Remarks on Sentence p 25.8.
Applicant's written submissions at [21].
House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).
Ibid; see also Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed).
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep).
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA at [71] (Beech-Jones CJ at CL (as his Honour then was), N Adams and Cavanagh JJ).
Ibid.
Appeal Book pp 25-26; Remarks on Sentence pp 18-19.
Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [54] (Sackville AJA). See also Wu Shan Liang, supra, at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Douglass v R [2001] NSWCCA 250; (2001) 34 MVR 35.
Ibid at [13] (R A Hulme J, with whom Spigelman CJ and Howie J agreed). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2024

Crimes Sentencing (Procedure) Act 1999(NSW)

(2023) 112 NSWLR 533

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (43)

Cited By (3)